Spaulding v. Conopco, Inc.

• Decision Date: 29 January 2014
• Docket Number: No. 12–3966.,12–3966.
• Citation: 740 F.3d 1187
• Parties: Ricky SPAULDING, Plaintiff–Appellant v. CONOPCO, INC. Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

740 F.3d 1187

Ricky SPAULDING, Plaintiff–Appellant

v.CONOPCO, INC. Defendant–Appellee.

No. 12–3966.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 24, 2013.

Filed: Jan. 29, 2014.

Laurie Del Percio, Independence, MO (Douglas R. Horn, on the brief), for Appellant.

Peter Flint Daniel, Kansas City, MO (Chad Eric Blomberg, on the brief), for Appellee.

Before WOLLMAN, BEAM, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Ricky Spaulding worked as an employee of an independent contractor that provided industrial cleaning services to Conopco, Inc. (“Conopco”) at its Unilever plant in Independence, Missouri. While cleaning a large tank, Spaulding fell into it and suffered severe personal injuries. Spaulding sued Conopco, asserting negligence based on a variety of Conopco's alleged acts and omissions. The district court ¹ granted Conopco's motion for summary judgment. The district court concluded that Conopco owed Spaulding no legal duty of care because it did not exercise substantial control over the jobsite or Spaulding's work activities. Spaulding argues on appeal that (1) Conopco exercised substantial control over the jobsite and Spaulding's work activities such that Conopco, as landowner, owed Spaulding a duty to exercise reasonable and ordinary care, and (2) Conopco owed Spaulding a duty to warn independent of Conopco's level of control. We affirm.

I. Background

Spaulding usually worked for Crown Services, Inc. (“Crown”), but occasionally Crown assigned Spaulding to work as a temporary employee for Vac–Con Industrial Services, Inc. (“Vac–Con”). When working for Vac–Con, Spaulding “hydroblasted” industrial machinery. Hydroblasting is an industrial-cleaning technique employing a high-pressure water gun. Hydroblasters are similar to commercial pressure washers except more powerful.

On May 15, 2010, Crown assigned Spaulding to work for Vac–Con to clean areas of Conopco's Unilever plant. Vac–Con personnel instructed Spaulding to clean a particular tank known as the Kettle 910. Although he had cleaned other tanks, Spaulding had never hydroblasted or otherwise cleaned the Kettle 910. A protective steel heat shield prevented Spaulding from accessing certain interior portions of the Kettle 910. To reach these areas, Spaulding climbed atop some railing located above the Kettle 910. While standing on this wet railing, Spaulding slipped and plummeted headfirst into the Kettle 910. Spaulding alleges that the blades located within the Kettle 910 somehow became activated such that the tank pulled him by his collar into the tank. Because of the fall, Spaulding suffered severe personal injuries, including injuries that would require a partial amputation of his right leg. Spaulding filed for and receivedworkers' compensation benefits through Crown as a result of this accident.

On March 31, 2011, Spaulding brought this diversity action against Conopco. Spaulding asserted that Conopco negligently failed to provide a scaffold, ladder, or lift to allow him to access all portions of the tank. Spaulding contended that Conopco's failure made the Kettle 910 a defective and dangerous condition on Conopco's premises that was not reasonably safe for Spaulding as an invitee. Furthermore, Spaulding contended that Conopco failed to exercise ordinary care to warn him of this dangerous condition and in maintaining it.

Conopco countered by asserting that it owed Spaulding no duty of care under Missouri premises-liability law because Conopco did not exercise substantial control over the jobsite or Spaulding's work activities. The district court agreed with Conopco and granted summary judgment in its favor. Spaulding timely appealed.

II. Discussion

On appeal, Spaulding argues that the district court erroneously granted summary judgment in Conopco's favor because (1) Conopco exercised substantial control over the jobsite and Spaulding's work activities such that Conopco, as landowner, owed Spaulding a duty to exercise reasonable and ordinary care, and (2) Conopco owed Spaulding a duty to warn independent of Conopco's level of control.

In response, Conopco argues that it did not maintain control over the jobsite where Vac–Con employees cleaned or the activities of Vac–Con employees highlighting eight facts. First, Conopco emphasizes that it never provided hydroblasting training or equipment to Spaulding or other Vac–Con employees. Second, Conopco highlights Spaulding's deposition testimony stating that his immediate Vac–Con supervisor “controlled the jobsite.” Third, only Vac–Con employees determined how to hydroblast the tanks and machines, such as determining the amount of water pressure to be used. The Unilever employees merely identified the tanks to be cleaned. Fourth, Spaulding only spoke to Unilever plant personnel about non-work related matters when exchanging greetings or mere pleasantries. No Unilever plant personnel instructed Spaulding as to hydroblasting or how he should otherwise conduct his work. Fifth, on the day of the accident, no Unilever plant employees were in sight or otherwise present. Sixth, neither the Unilever plant Maintenance Planner nor the Unilever plant Building Mechanic instructed Spaulding how to conduct his hydroblasting activities. Seventh, Vac–Con management attended Conopco's annual safety-training sessions. Vac–Con management should have instructed Spaulding as to any relevant safety matters. These training sessions did not include hydroblasting instructions. Finally, only Vac–Con employees attended the daily safety meetings, including the meeting that occurred on the day of Spaulding's accident.

A court properly grants summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A material fact is “genuine” when the evidence would allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Facts must be viewed in a light most favorable to the nonmoving party when genuine disputes of fact arise at the summary-judgment stage. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). A nonmoving party who bears the burden of proof at trial must “make a showing sufficient to establish the existence of an element essential to that party's” claim at the summary-judgment stage, for “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Missouri law applies in this diversity case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

A. Control

The crux of this dispute is whether Conopco exercised sufficient control over the jobsite and Spaulding's work activities to be held liable for injury to its independent contractor's employee.

Under Missouri law, a property owner owes an invitee the duty to use reasonable and ordinary care to prevent injury. Matteuzzi v. Columbus P'ship, L.P., 866 S.W.2d 128, 132 (Mo.1993) (en banc). “An ‘invitee’ is ‘a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.’ ” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo.1993) (en banc) (quoting Restatement (Second) of Torts § 332 (1965)). Employees of an independent contractor who have permission to use the landowner's facilities or premises are invitees. Matteuzzi, 866 S.W.2d at 132. It is undisputed that Spaulding, an employee of an independent contractor, was an invitee for purposes of Missouri premises-liability law.

In Matteuzzi, the Supreme Court of Missouri established a significant exception to the general rule that property owners owe invitees a duty to exercise reasonable care to prevent invitee injury, stating, “If, however, the landowner relinquishes possession and control of the premises to an independent contractor during a period of construction, the duty of care shifts to the independent contractor. The landowner, no longer considered the possessor of the land, is thus relieved of potential liability.” Id.

Missouri courts have offered multiple explanations for this exception. First, where the landowner relinquishes possession and control of the premises to an independent contractor, the independent contractor should be charged as the party most capable of avoiding risks of harm that could strike the contractor's employees. Zueck v. Oppenheimer Gateway Props., Inc., 809 S.W.2d 384, 386 (Mo.1991) (en banc). Second, with the advent of workers' compensation, employees of independent contractors can recover money for accidents that occur while on the job.²See Gillespie v. St. Joseph Light & Power Co., 937 S.W.2d 373, 376 (Mo.Ct.App.1996). The contractors purchase workers' compensation insurance, and they pass these costs on to the landowners with whom they contract. Id.

Matteuzzi requires that the employee show that the landowner controlled the jobsite and the activities of the contractor.Matteuzzi, 866 S.W.2d at 132. Furthermore, the landowner's involvement in overseeing construction must be substantial, for it must go beyond securing compliance with contracts. Id. The landowner must control “the physical activities of the employees of the independent contractors or the details of the manner in which the work is done.” Id. (quotation and citation omitted). Bare assertions of control will not suffice. See id. We have recognized that Missouri courts have applied Matteuzzi broadly. See Mullins v. Tyson Foods, Inc., 143 F.3d 1153, 1156 (8th Cir.1998).

a. Safety Policies

As proof of Conopco's control over the jobsite, Spaulding highlights the “lockout/tagout” procedures as evidence of Conopco's control over the jobsite. Lockout/tagout is the safety protocol that Conopco...